Who Cares About Voting Rights?

The Tyranny of the Majority
Lani Guinier Free Press, $24.95
by Mark Tushnet

Why should we care about "the right to vote"? Professor Lani Guinier's
collection of her now-notorious law-review articles -- augmented by an introductory
essay describing the circumstances under which those articles became matters
of public controversy -- describes several stages in the evolution of modern
voting rights law. As that law developed, a series of tensions crystallized
within our understanding of the importance of the right to vote. Guinier's nomination
to head the Justice Department's Civil Rights Division foundered because she
understood those tensions and her work makes them apparent. For understandable
political reasons, the politicians who control the nomination process preferred
to keep the tensions under wraps. For them, Guinier's intellectual honesty made
her politically unacceptable.

The first stage of voting rights law dealt with straightforward, formal exclusions
from the franchise: states simply didn't allow African Americans to vote. And
if you don't have the right to vote, you are not a full citizen. Once straightforward
exclusions are eliminated -- the key was the Voting Rights Act of 1965 -- a
second aspect of the right to vote appears. For if the right to vote symbolizes
full citizenship, it also has a more instrumental value in a representative
democracy: it is the way you get to choose the people who make public policy.
You can use the vote to promote your interests. But suppose you are a member
of a minority group: is a legally recognized right to vote an effective means
for ensuring that your interests are taken into account? Suppose, for example,
that your city adopts a multi-member district system, establishing one large
district to choose six members of the city council. If the city has a white
majority, then the votes of racial (and other) minorities can be swamped. Despite
the symbolic trappings of equal citizenship, minorities are effectively disenfranchised.
They can't elect what voting rights law calls "representatives of their
choice." Faced with problems of effective disenfranchisement, voting rights
advocates came to the view that something had to be done "to ensure that
disadvantaged and stigmatized minority groups . . . have a fair chance to
have their policy preferences satisfied." And something was done:
the Voting Rights Act Amendments of 1982 created a right to select representatives
of choice.

But what precisely is "a fair chance to have their policy preferences
satisfied," and when are minorities being denied it? There are,
I think, two possible answers. Unfortunately, the politicians who enacted the
1982 Voting Rights Act waffled completely about which answer is right.

We could say that minorities are denied a fair chance to have their policy preferences
satisfied if the policy-making process is unresponsive to those preferences.
But what precisely is an unresponsive process? The content of the process-based
theory of fair representation depends on how its proponents answer this question.
Let's come back to their answers after first considering a more radical, result-based
theory. This alternative line of argument stipulates, from some objective perspective,
what the true interests of minorities are -- for example, jobs, income,
health, public safety. It then looks at whether the results of the political
process advance those interests. If public policy does not promote those interests
-- because there is high unemployment, low income, bad health, and unsafe neighborhoods
-- it concludes that minorities are being denied the right to a fair chance
to have their interests served.

Guinier indirectly explores this second possibility. She is motivated
to develop voting rights law in new directions, at least in part out of a concern
that public policy has failed to promote minority interests. And that concern
is reflected, too, in her desire to ensure "authentic" representation
of minority interests -- by which she means representation that promotes those
interests. Although her critics misrepresented her talk about "authenticity"
as an insistence that only some minority representatives could be "authentic"
while others were inauthentic, Guinier clearly means that members of the majority
can also be authentic representatives of minority interests. Authenticity is
a matter of the results of the political process, not the race of the representative.

It's easy to criticize result-based approaches, which measure whether minorities
have had a fair chance by considering whether their interests have in fact
been advanced by public policy. After all, having a fair chance to have your
policies adopted doesn't mean that they will be adopted. Under a system of majority
rule there are typically winners and losers. And if the majority rejects your
policies, it might be because those policies actually conflict with the majority's
interests. Moreover, even if politics is not a place where one group can win
only at the expense of another, a minority's policies might still be rejected.
After all, the policies you favor may be self-defeating, or they may address
your real concerns only symbolically. The losers, we might think, had
a fair chance -- their voices were heard -- and simply lost when the legislature
thought about what good public policy would be. So, if we focus on the fact
that minority interests are not being promoted by public policy, we end up imposing
an external standard on the legislature's output.

In the end, Guinier accepts these criticisms of the result-based approach to
fair representation. And this places her squarely in the American political
and legal mainstream. In thinking about what government ought to do, Americans
have traditionally concentrated far more on procedure than on substance. After
1982, voting rights law, too, followed a proceduralist path: the path of ensuring
a process that is responsive to minority preferences. Instead of asking whether
minority interests were being effectively promoted, it asked whether the representatives
actually chosen were "representative" of the minority groups. Formally
speaking, that meant asking whether some of the people elected were actually
preferred by members of minority groups. And to answer that question, it turned
its attention to making sure that district lines were drawn to guarantee that
some elected officials won the support of a majority consisting of minority
group members -- a strategy that has involved "race-conscious" methods
of drawing lines around voting districts, as with the now-
famous 160 mile long, serpentine District 12 in North Carolina. A responsive
process, then, is a process with sufficiently many districts in which the majority
are members of a minority group. In assessing this strategy for assuring fair
representation, it is important to bear in mind the limits of post-1982 voting
rights law: in brief, it deals with fewer situations than many people think.
With some qualifications that we need not worry about here, it comes into play
only when voting is racially polarized -- that is, when few whites vote for
candidates supported by racial minorities, and when few minorities vote for
white candidates. Where voting is racially polarized, you can guarantee the
election of a candidate supported by a majority of minority voters by making
sure that some districts had "appropriate" numbers of minority group
members -- usually 55% or more.

This strategy of remedying violations of the Voting Rights Act by establishing
"majority-minority" districts turned out to be something between a
very bad thing and a disaster for racial minorities. Particularly as it became
easy to use computer technology to draw district lines, people -- mostly Republicans
-- discovered techniques that would guarantee the election of some members of
racial minorities while actually reducing the chances that the views of those
representatives would prevail in the legislature. The techniques are known in
the voting rights field as packing, cracking, and stacking. For
example, you can guarantee the election of a minority representative by packing
as many members of that minority as possible into a single district. The problem
is that in other districts, racial minorities are so few in number that candidates
can simply disregard them. The result is that you get one minority representative,
and a slew of representatives who owe nothing to minority constituents. Cracking
and stacking are more complicated, but they have the same result: the legislature
has the "right number" of minority representatives, and they are regularly
outvoted.

Perhaps the most racist distortion of Guinier's political views was to designate
her a "quota queen." For if one comes away from Guinier's book with
only one conclusion, it must be that she believes that the strategy of
racial districting designed to guarantee mere demographic representativeness
-- to ensure a quota of minority representatives -- is a very bad idea.

For Guinier, the way to give minorities a fair chance is through procedural
devices other than race-conscious districting. One proposal -- not explored
in much detail -- would change the internal decision-making processes of legislatures.
Adopting some policies might require more than a simple majority within the
legislature. That would be a decent strategy for protecting minorities against
laws that hurt them, if we could be sure that the legislature would apply these
super-majority requirements to the right set of policies. In fact, even a general
super-
majority requirement might sometimes help minorities by giving them something
on which they could trade votes. The modern filibuster in the Senate is a good
example. By threatening a filibuster -- a minority veto -- on one bill, legislators
can extract concessions on another.

Guinier's second proposal occupies more of her time. She suggests that "cumulative
voting" -- the system now used in Peoria -- might help racial minorities.
She argues that instead of having one member elected from each district, districts
should be expanded and elect several representatives. But these new districts
would differ from the old and discredited multi-member districts. Voters would
be given more than one vote -- as many votes as there are representatives from
the district. Each voter could then choose how to distribute those votes. Some
might cast one vote for each of five candidates; others might cast all five
of their votes for a single candidate. This would permit minority voters in
particular to pool their votes, perhaps each giving all five votes to one candidate;
or they might choose a strategy of partial cooperation. But unlike race-conscious
districting, cumulative voting would not reinforce existing racial divisions
or limit strategies of cross-race alliance.

Cumulative voting is a move in the direction of proportional representation.
As such, it is at odds with modern American voting law, though other nations
have been more attracted to variants of proportional representation than to
the US system. The criticisms of proportional representation are well known,
and have some bearing on Guinier's proposal for cumulative voting. Parties tend
to proliferate. With each voter having to decide what to do about five candidates,
it becomes harder for candidates to develop purely personal candidacies; instead
they tend to identify themselves as members of a party, and membership in a
party becomes a decent indication of what policies the member will promote if
elected. With the multiplication of ideological parties in the legislature,
it becomes harder to develop coherent national policies.

Given these difficulties with systems of proportional representation, it is
not clear to me that Guinier's system of cumulative voting, if widely adopted,
would actually help advance the interests of racial minorities. For it might
well further enfeeble the government, presenting yet another obstacle to a coherent
national program aimed at addressing problems of racial inequality.

But, then, Guinier herself appears not to want cumulative voting to be widely
adopted. In a remark elevated from the footnotes in one of her law review articles
to the text in her book, she says that cumulative voting is to be deployed as
a remedy only "in extreme cases of racial discrimination at the local level."
This restriction may be quite sensible, but it reflects a tension within Guinier's
analysis. Readers who sympathize with her desire to ensure that legislatures
advance the interests of racial minorities almost certainly have in mind the
large-scale failures of national policy on issues of interest to racial minorities:
the appalling levels of unemployment in minority communities, the equally appalling
failure of the wider society adequately to protect those communities from criminal
predators, and the like. But the extreme cases her remedies address have almost
nothing to do with the sources of these policy failures. And to the extent that
she provokes us to think about proportional representation on a larger scale,
the problems with proportional representation become more apparent.

This tension within Guinier's thought parallels another. As I've suggested,
Guinier offers procedural remedies for the substantive concerns that motivate
her. But if we ask why public policy (on a large scale) now fails to promote
minority interests, we are likely to conclude that a commitment to procedural
remedies requires considerable optimism.

To see the trouble, consider first a problem with majority rule: the problem
of "wasted votes." Suppose a candidate wins an election with 55% of
the votes in the district. We might think that the 45% who voted for the loser
are not going to be represented. After all, the winning candidate doesn't owe
anything to them, so why should she pay attention to their concerns?

As Guinier points out, James Madison's theory of representative democracy solved
this problem by appealing to "the principle of reciprocity. The self-interested
majority worries that the minority may attract defectors from the majority and
become the next governing majority." Over her term, the winning candidate
is going to have to cast votes in the legislature on scores of issues: health
care, crime policy, road-building, the budget. Some votes probably will bother
some of the people who voted for her, but those votes -- or perhaps other votes
-- may help change the minds of some of the people who voted against
her. The need to campaign for reelection, and uncertainty about which issues
will be important next time around, can make the winning candidate responsive
to the interests of people who voted for her opponent last time.

Reciprocity comes in another form. African Americans are, of course, a minority
in the national electorate. They can be outvoted in any system of majority
rule. But if everyone's votes are counted, it ought to be in some politician's
interest to appeal to any group, which means that even minority interests should
be taken seriously in the political system. By getting their votes, the politician
can build a coalition eventually exceeding 50%. Consider, for example, a district
with 80 white votes and 20 African Americans. If 45 of the whites are Democrats
and 35 are Republicans, both parties have an interest in developing a platform
that would get them enough votes from African Americans to win the election
(six for the Democrats, 16 for the Republicans).

The idea is that democracy is not a system with a permanent majority, but shifting
coalitions of minorities. If that is right, then the principle of reciprocity
appears to eliminate concern that majority rule will systematically disregard
the interests of minorities, even racial minorities. Putting aside disagreement
on the merits, then, why do legislatures fail to respond to minority interests?

Where voting is polarized by race, a platform that attracts minority voters
might drive white voters away. If Democrats lose ten white voters in their quest
for six African American votes, they won't try to get those votes: racial division
prevents the shifts of coalition that, in the Madisonian view, link democracy
and reciprocity. That's why the 1982 Voting Rights Act expressly asks courts
to focus on racial polarization, and why Guinier's procedural innovations are
addressed to extreme cases of such polarization.

Guinier takes her title from Madison, who sought to avoid "the tyranny
of the majority" through both substantive and procedural limits on majority
rule. Substantively, the Constitution would limit what majorities could do.
Procedurally, it created a government with a large territory. Putting together
a coalition by appealing to diverse interest groups works best in such a territory.
A small government might not have any districting, in which case the majority
would necessarily get its way by outvoting the minority. And even if you draw
district lines in a small town, chances are pretty good that people who reside
in one district will have the same interests: That's why "the other side
of the tracks" is an effective metaphor for social divisions. But if the
territory gets larger, the "people who live on the other side of the tracks"
can develop a political coalition with people living in other districts who
share some of their interests.

With a large territory, representatives ought to be out there trading votes
to assemble coalitions. In particular, representatives of a racial majority
ought to be willing to vote for programs favored by African Americans in exchange
for African American votes for programs their majority constituents want --
unless there is a deep and systematic conflict between programs favored
by African Americans and those favored by whites.

Guinier's arguments about the inadequacy of existing voting systems gain appeal
from the fact that large-scale national policies have failed to serve the African
American community. That suggests that there really may be a deep conflict of
interests. Our ambivalence about what the right to vote means may result from
a widely-shared pessimistic -- or racist -- sense that the racial polarization
that Guinier aims to address only in certain extreme cases may actually characterize
our national politics more generally, and an equally widely-shared optimistic
sense that by working together we can overcome whatever divisions we currently
face.

What is most striking about Guinier's work, given these tensions, is how optimistic
and fundamentally conservative she is. For her, people -- perhaps most particularly
whites -- have mistakenly seen politics as a zero-sum game, in which what one
group wins necessarily comes at the expense of another group. Instead, she proposes,
we ought to believe -- apparently in the face of the failures of public policy
-- that society is not so racially polarized; public policy could generate gains
for everyone. All we need to do, according to Guinier's optimistic vision, is
develop procedures which will allow all of us to work together to find
the policies which will do that. The substantive failures of policy can
be eliminated by following the indirect strategy of using the right procedures.
Which invites the pessimist to reply that the failures of policy show that the
principle of reciprocity really doesn't work on matters of importance to African
Americans, and that those failures must result from a more deeply-rooted racism
than Guinier is willing to acknowledge.

Guinier's conservative side is her quite genuine concern, which pervades the
book, that unless public policy begins to address the needs of the African American
community, that community will become increasingly disaffected from national
politics, with disorder to follow. Somehow, procedures to empower the African
American community must be devised lest the United States face once again the
urban turmoil of the late 1960s.

(We should note, but only in passing, that Guinier's proceduralism has a rather
narrow focus. The civil rights movement showed the country that minorities can
exert political influence outside the ballot box, through demonstrations and
other forms of non-electoral political organization. The other side of the coin,
of course, is that the electoral process is affected by much more than the simple
counting of votes. Put most crudely, money may count more than votes in elections.
These matters, though, are outside Guinier's concern, and there is no reason
to think that she would disagree with any conclusions others might draw about
them.)

I am skeptical about Guinier's conclusion that procedures can solve the problems
of racial politics in this country. Indeed, I believe that the tensions within
Guinier's work indicate that on some level she is skeptical about that conclusion
as well. But her optimism and conservatism lead her to hope that procedures
will do the job.

Because Guinier's analysis leads us to think seriously about the merits of proportional
representation, it is hardly surprising that politicians who made their way
through our existing system of plurality district-based elections were uncomfortable
with what she had written. They may have understood that Guinier had identified
tensions within our nominal commitment to the right to vote, but they did not
understand that she had chosen the less radical way of easing those tensions.
As when they amended the Voting Rights Act in 1982, they preferred avoiding
the tensions to confronting them. Of course no one is entitled to a high position
in the government. And of course politics ain't beanbag. Still, one unfortunate
consequence of President Clinton's withdrawal of Guinier's nomination was that
we avoided a serious national discussion of what we really think about the right
to vote. Do we accept a process-based view of fairness, or a result-based theory?
And if the former, how do we propose to remedy the unfairnesses that
attend racially-divided voting?

These are hard questions, and as Stephen Carter writes in his introduction,
Guinier's case suffered from being complicated. Our politics is not well-designed
to deal with complexity -- which is, indeed, why the Voting Rights Act of 1982
obscured fundamental issues about the right to vote.

Guinier's opponents correctly located one side of her ambivalence about our
political system. They also correctly understood that Guinier's prescriptions
gained much of their rhetorical appeal by mobilizing a sense that national
politics doesn't work well for African Americans, but were most defensible when
applied only to local politics. The tension between the diagnosis --
the failures of public policy -- and the prescription -- procedural reform --
made her position difficult to defend, even if the President had wanted to.

Still, the story may have a happier ending than it seemed a year ago. Consider
that one opponent of Guinier's nomination, who should have known better, frightened
her readers with the prospect that Guinier would "be free to initiate suits
to modify sentencing practices -- labeled `discriminatory' -- that send a disproportionately
high number of black men to jail." No matter that nothing in Guinier's
articles suggests that she
had any interest in initiating such suits. No matter, either, that I can just
barely scratch out a theory under which the Civil Rights Division has statutory
authority to do so.

What matters is the blithe assumption that an Assistant Attorney General is
"free" to start suits that press existing law well beyond its current
limits. The civil servants in the Division would surely resist efforts to go
so far. And it's not hard to imagine what Guinier's political superiors would
have said about these lawsuits.

But a policy that is a bogey-man in the hands of a public official can be an
interesting academic proposal. I have no doubt that Guinier's ideas have now
received a wider exposure, through their publication by a commercial press,
than they had before she was nominated. Surely they have been made more respectable
because of the campaign against her. Oddly, then, she may have more influence
over the development of civil rights law because her nomination was withdrawn
than she would have had within a Justice Department staffed below her by civil
servants and controlled above her by politicians. Not for the first time, politics
may have operated in mysterious ways its wonders to perform.

Originally published in the June/September
1994 issue of Boston Review

Copyright
Boston Review, 19932005. All rights
reserved. Please do not reproduce without permission.